America’s food dye ban challenged in West Virginia as judge halts provisions of law

The “Make America Healthy Again” (MAHA) movement hit the ground running in 2025 — pushing a wave of health policy changes nationwide, especially around food and nutrition. Now supporters vow that one court setback will not slow them down.

A West Virginia judge paused enforcement of parts of H.B. 2354 — the state law restricting certain food dyes and preservatives — during the holiday week, on Dec. 23. That triggered swift backlash from state leaders and advocates who say the fight is only intensifying.

In her ruling, Judge Irene Berger — appointed by former President Obama — said the law is “unconstitutionally vague because it fails to provide sufficient notice and invites arbitrary enforcement.”

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She added that the statute does not spell out how the West Virginia Department of Health should determine whether color additives beyond those specifically listed are “poisonous and injurious.”

Berger was nominated in 2009 by Obama to serve as a U.S. district judge for the Southern District of West Virginia.

A West Virginia judge appointed by former President Barack Obama has paused a Make America Healthy Again food dye ban, calling the law “unconstitutionally vague” in a major setback for the health movement. (Nathan Posner/Anadolu via Getty Images)

West Virginia’s House Bill 2354, signed by Gov. Patrick Morrisey, aims to phase out specific artificial dyes in stages.

Beginning on Aug. 1 of this year, seven dyes were banned from school lunches — and starting Jan. 1, 2028, the same dyes, along with two preservatives, would be banned from food products sold statewide.

The judge’s new ruling does not apply to school nutrition programs — so the school-lunch portion remains on track even as the broader legal fight plays out.

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Red Dye No. 3, Red Dye No. 40, Yellow Dye No. 5, Yellow Dye No. 6, Blue Dye No. 1, Blue Dye No. 2 and Green Dye No. 3 were all banned from school lunches starting in August. 

The same food dyes, plus the preservatives butylated hydroxyanisole and propylparaben, will be banned from all food items sold in the state beginning in 2028.

The food dye ban in West Virginia is “unconstitutionally vague because it fails to provide sufficient notice and invites arbitrary enforcement,” said a judge. Others disagree vehemently.  (iStock)

Gov. Morrisey, a Republican, issued a statement blasting the decision as a detour, calling it “premature and incorrectly decided.”

“West Virginia will continue to defend its authority to protect the health and well-being of our citizens, especially children,” his statement said. “We are reviewing our legal options and will continue to press forward with our efforts to get harmful crap out of our food supply.”

Morrisey told Fox News Digital in an interview that “West Virginia has set the standard for the nation when it comes to protecting children from harmful ingredients in food.”

“Since we acted, other states have stepped forward and manufacturers have already begun changing formulas, because they see where this is headed,” Morrisey said.

“We are reviewing our legal options and will continue to press forward with our efforts to get harmful crap out of our food supply,” said Gov. Patrick Morrisey in reaction to the judge’s decision. (Andrew Harnik/Getty Images)

“Children who consume these dyes across many foods, day after day, during critical stages of development, face a higher risk of chronic disease,” he added. “West Virginia acted because protecting children’s health should never be optional, and we remain proud to lead this effort.”

Red dye gives food a bright cherry red color. It has been linked to behavioral issues in children, while non-human studies have linked the dye to cancer, according to the Cleveland Clinic.

Robert F. Kennedy Jr., secretary of Health and Human Services, has made removing artificial dyes from America’s food supply one of his priorities during his work as a member of President Donald Trump’s Cabinet. 

“Artificial food dyes offer zero nutritional value.”

During his first trip as America’s lead healthcare official in March, Kennedy spoke in Martinsburg alongside Gov. Morrisey, who said his state’s ban plan and the Democrat scion’s choice to visit the area first showed that the “MAHA” movement “begins right here in West Virginia.”

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The debate over artificial dyes has become a flashpoint for MAHA-aligned supporters. Many see the legal challenge as proof the movement is beginning to hit real resistance. They see it as a reason to push back hard, rather than retreat.

Liana Werner-Gray, nutritionist and author of “The Earth Diet,” told Fox News Digital that “artificial food dyes offer zero nutritional value.”

The native Australian said the European Union (EU) requires warning labels on products containing several common artificial dyes “because of links to activity and attention effects in children.”

“I know who is going to win — because there is nothing more powerful than moms protecting their children,” said a MAHA advocate. (Fox News Digital)

Werner-Gray added that “from a preventative health standpoint, removing unnecessary additives is a straightforward way to reduce avoidable risk.”

She noted that injunction or not, one bright spot is that the conversation has shifted.

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“Parents are asking why ingredients linked to behavioral and neurological concerns are still common in children’s food, and that question isn’t going away,” she said. “They want it to go away, they want us to go away with this, but we won’t.”

Vani Hari, better known as the “Food Babe,” told Fox News Digital that “the judicial system is going to see the might of the MAHA movement.”

“There is nothing more powerful than moms protecting their children.”

“I know who is going to win — because there is nothing more powerful than moms protecting their children,” said Hari, who is based in North Carolina.

The case was brought by the International Association of Color Manufacturers, an organization based in Washington, D.C., that alleged the West Virginia bill causes economic harm to its member companies.

“The statute arbitrarily and irrationally targets color additives no U.S. agency — state or federal — nor any court has ever found to be unsafe,” IACM said in a statement announcing its suit, adding that the ban also lacks “scientific evidence.”

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West Virginia’s governor, for his part, said the decision by the Obama-appointed judge is legally flawed. Morrisey said he believes the decision will be reversed.

California, Virginia, Utah and Arizona have sought to enact similar bans focused largely on children’s school lunches.

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Fox News Digital’s Alec Schemmel and Charles Creitz contributed reporting.